This case was reported in Issue 38 Lawtel PI Bulletin October 2018
Total Damages: £40,000 (£41,656.28 RPI)
PSLA: £30,000 (£31,242.21 RPI)
Trial/settlement date: 10/7/2017
Type of Award: Out of Court Settlement
Court: Out of Court Settlement
Age at trial: 36
Age at injury: 33
The claimant, a 36-year-old man, received £40,000 for the crush injuries to his fingers he sustained during the course of his employment in February 2014, although liability was disputed. He underwent an operation on the area but subsequently developed osteomyelitis and so the ring finger was amputated down to the medial phalanx.
Employers’ Liability; Industrial: On 3 February 2014 the claimant employee (C), approximately three weeks after starting work as a roller shutters engineer for the defendant employer (D), was attending a customer’s warehouse with his manager where he was due to fit a high-speed roller shutter. The shutter was lowered into position using a crane but because one of the shutter legs was not where it was supposed to be, C’s manager told C to grab the base of it and pull it into position. C began pulling the leg while his manager hit it with a large fencing weight to try to knock it into position. However, C’s manager missed hitting the leg and instead hit C’s fingers on the right dominant hand. A site manager at the warehouse called a first aider and arranged for a member of staff to drive C to hospital where it was discovered that he had sustained crush injuries to the medial phalanges of the ring and middle fingers.
C sustained injury and brought an action against D alleging that it was negligent in (i) failing to make any proper and adequate assessment of his work for risks of injury; (ii) failing to undertake any proper consideration of the capabilities of D’s employees as regards health and safety before entrusting the work to them and failing to provide any suitable or adequate safety training; (iii) failing to provide him with appropriate information and guidance relating to the task at hand; (iv) failing to provide adequate or appropriate equipment to complete the task (v) exposing him to a trap or foreseeable risk of injury; (vi) failing to take any or adequate care for C’s safety. C also alleged that the actions of C’s manager, for which D was vicariously liable, were negligent, and that D was negligent and/or in breach of regs 3, 4, 10 and 11 of the Management of Health & Safety at Work Regulations 1999.
Injuries: C sustained crush injuries to the right middle finger and ring finger.
Total injury duration: permanent
Effects: C’s middle finger suffered a laceration measuring 2cm across the medial phalanx. There was an ulnar margin with altered sensation distal to the laceration. The ring finger sustained a laceration to the mid palmar measuring 3cm, there was altered sensation to the wound and C was able to slightly move the proximal interphalangeal joints but was unable to move the distal interphalangeal joints. There was also a displaced fracture of the medial phalanges of the ring and middle fingers. The middle finger had sustained a transverse fracture of the distal shaft of the middle finger. The wound was explored and it was found that there was 100 per cent division of the ulnar digital artery. The radial digital artery, nerves and tendons were intact.
C underwent an examination under anaesthesia and a wash out. An operation was performed on the middle and ring fingers and k-wiring was inserted into the ring finger. The fingers were then strapped up in a half cast due to swelling and Solpadeine was administered for pain relief. C was discharged and returned home for approximately one week. However, his father noticed that the arm was red and swollen and so C returned to hospital. On 13 March 2014 the k-wire was removed and it was discovered that C had developed cellulitis, there was pus oozing from the dorsum of the ring finger over zone 2 to the fracture site where there was non-union. It was discovered that the initial operation had failed and C had contracted a serious infection, osteomyelitis. He was treated using intravenous methods and debridement was performed on the infected non-union area of the ring finger. Flucloxacillin was administered for two weeks. C’s arm improved but the ring finger did not. As a result he underwent an amputation on the ring finger down to the level of the medial phalanx.
Whilst recovering from the surgery C was unable to perform a range of domestic chores. He also experienced difficulty supporting his partner in caring for their newborn child. Following recovery his dexterity in the right hand remained severely reduced and so he struggled with buttoning up clothing, belts and laces. He was unable to perform anything requiring intricate skills using the right hand.
C subsequently suffered daily intermittent pain in the middle and ring fingers and in the palm of the hand. It usually occurred in the mornings, during cold weather or after lifting or gripping items. The pain persisted until the hand warmed up or rested. He also felt weak in the hand and experienced a reduced range of movement in the fingers. There was a firm lump in the middle of C’s palm, possibly scar tissue or implantation dermoid cyst. The grip in the hand had also become weaker and he was only able to hold 30kg in the right hand, compared to 55kg in the left hand.
After the accident C was absent from work for six weeks. C had lost two jobs following the accident, and was working reduced hours at the time of settlement.
At the medical assessment on 18 May 2016, there were visible scars of 3cm on the radial and of 2cm on the ulnar side. C continued to experience daily intermittent pain and he was still using Solpadeine for pain relief. C experienced ongoing weakness of the hand, reduced range of motion in the fingers and continued to have a lump on the palm of the hand at the time of this medical assessment. At the time of settlement, C was handicapped in carrying and lifting at work, struggled to use drills and power tools, was much slower at work and needed assistance, and was handicapped in finer dextrous work. The medical expert suggested surgery to remove the lump from C’s hand and improve the state of the stump, which C was keen to undergo. The medical expert concluded that C’s chances of obtaining employment on the open labour market would be affected by the injuries suffered.
Out of Court Settlement: £40,000 total damages
Breakdown of General Damages: Pain, suffering and loss of amenity: £30,000.
Simmons v Castle  EWCA Civ 1288 10 per cent uplift: applied.
Express Solicitors Ltd for the claimant.
This Quantum Report was provided courtesy of Robert Weeden of Express Solicitors Ltd, solicitor for the claimant.